VEENA DEVI Vs. KRISHNA AGNIHOTRI

JUDGEMENT

(1.) This first appeal has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 3rd December, 2002 passed by Second Additional District Judge, Khandwa, in Civil Suit No.32-A/2001, which was instituted on 28th September, 1998; whereby preliminary decree for partition of the suit property with regard to 1/5th share of the respondent/plaintiff has been passed.

(2.) Facts giving rise to this appeal in brief, are that the suit property was the self acquired property of deceased Ram Chandra Tiwari, who died on 14.12.1965 leaving behind his heirs i.e. his wife Heeramani, who died on 22.04.1998 and son Harish Chandra, who died on 09.06.1996 and three daughters i.e. Krishna Agnihotri, plaintiff/respondent and Chandra Bai and Usha Devi, who were not parties to the suit. The defendants/appellants No.1 to 4 namely Veena Devi being wife and Atul Chandra, Aseem Chandra and Pragati being son and daughter of Harish Chandra are his heirs. On 28.09.1998, Krishna Agnihotri being daughter of deceased Ram Chandra Tiwari filed a suit for partition against aforesaid heirs of her brother Harish Chandra claiming 1/5th share in the suit property as after the death of father Ram Chandra, mother Heeramani transferred her share in favour of Harish Chandra, the suit property is a dwelling house as well as other land and prayed that the property be partitioned and 1/5th share be provided to her. So far as other sisters Chandra Bai and Usha Devi are concerned, they have relinquished their share in favour of Harish Chandra, therefore, they are not made parties to the suit.

(3.) The defendants/appellants refuting the aforesaid claim submitted in the written statement that the plaintiff has no share in the property. The property left by Ram Chandra Tiwri was subject to recovery of tax in the form of estate duty which was paid by Harish Chandra and the value of the property was equivalent to the due amount and some money was also spent for legal necessity of the family and to protect the property, therefore, other co-sharers have no right in the property as they have not spent any amount which was incumbent on the property. Apart from it, as per the provision of Section 23 of the Hindu Succession Act plaintiff being a female heir cannot claim partition of dwelling house, therefore, no decree of partition can be passed. It is further submitted that the suit is time barred. After the death of Ram Chandra, in the year 1966 the plaintiff claimed share in her favour. At that time, deceased Heeramani, wife of Ram Chandra and deceased Harish Chandra refused her demand stating that the value of her share in the property left by deceased Ram Chandra has been adjusted in payment of due amount towards Ram Chandra and since they are in exclusive possession of the property openly as owner till filing of the suit and thereafter, therefore, the suit is time barred. It is also submitted that 4470 sq.ft. land out of the suit property was transferred by Ram Chandra to his wife Heeramani in the year 1962 and Heeramani executed her will in favour of defendant/appellant No.1 Veena Devi. This property be separated from the disputed property as the same cannot be claimed for partition and prayed for rejection of the suit.